Balancing Privacy with Online Access to Court and Tribunal Decisions: Lessons for Open Government

A news story from January 2015 puts squarely into focus some of the challenges of privacy and open government.

The story centred on the Canadian legal information website CanLII, although the privacy issues it raises relate more directly to how government institutions protect personal information when seeking to comply with open courts and open government principles.

CanLII, a non-profit corporation that is managed by the Federation of Law Societies of Canada, is a tremendously important information resource in Canada. Since its inception, it has become instrumental in ensuring that Canadians have free online access to primary Canadian legal materials. It follows in the tradition of other Legal Information Institutes in the United States, Australia and Britain/Ireland. CanLII includes all Canadian and provincial statutes and regulations, case law from all federal and provincial courts, and case law from a growing number of administrative tribunals. Prior to CanLII’s appearance on the scene, these materials were found either on the shelves of law libraries, or were accessible through commercial databases that charged fees for access. In essence, they were not easily accessible to Canadians without significant effort or cost. In a legal system in which “ignorance of the law is no excuse”, and in which an ever-growing number of Canadians have no choice but to represent themselves in legal proceedings, this kind of public access seems essential. CanLII’s efforts to liberate these legal materials make an interesting story with plenty of open government lessons. (I have written about the evolution of CanLII here,).

The news story that broke in January related to a Romanian website that had scraped the content from CanLII and reposted it to another website hosted in Romania. In doing so, it allowed for the circumvention of technological measures put in place by CanLII that prevented Google from indexing terms found in court and tribunal decisions. These measures were put in place by CanLII largely to protect the privacy of individuals whose names and personal information may feature in court decisions. By contrast, the Romanian materials are fully searchable.

This situation raises several interesting issues of privacy and open government. At first glance, it may look like a failure of CanLII’s efforts to put into place effective technological measures to protect individual privacy. (CanLII has reportedly upgraded its technological protections, although the cases initially scraped from the site remain out of its control). But CanLII is really only the second line of defence. The first line of defence, is, of course, the courts and tribunals themselves that provide case law to CanLII as well as increasingly through their own websites.

The problem of “public personal information” is a thorny one, and it arises in this context as well as in many others. Public personal information is information that is legally public (government registry information, for example, or information in court decisions). While this information has long been public in nature, its widespread, immediate and limitless distribution was never contemplated in the pre-internet age in which decisions to make it public were made. Thus, there are important privacy issues surrounding how and under what conditions such information is made public, as well as how the public interest in openness should be balanced against individual rights to privacy in an internet and big data age.

In Canada, the open courts principle means that the proceedings of courts are open to public scrutiny – it’s a fundamental principle that justice must not only be done, it must be seen to be done. This means not only that, barring exceptional circumstances, court and tribunal hearings are public, as are the decisions reached in those cases. In fact, not only does this serve transparency and accountability values, the publication of court and tribunal decisions allows lawyers and members of the public to consult these decisions to better understand the law, and to learn how courts and tribunals interpret and apply legislation. In exceptional circumstances, courts may issue publication bans in relation to certain court hearings; courts may also order certain personal information (including, in some cases, names of individuals) redacted from court decisions. For example, in decisions involving young offenders, only initials are used. The names of victims of sexual assaults may also be redacted.

In the pre-internet dark ages, the redaction of names and other personal information from court decisions was less significant because these decisions did not circulate widely. Few members of the public, for exmpale, were curious enough to go down to a law library to trawl through case reporters in the hope of spotting the name of someone they knew. Internet access and online publication of decisions changes things significantly. Fully searchable databases of court and administrative tribunals can leave individuals substantially exposed with respect to a very broad range of personal information. Decisions in divorce cases may include a detailed account of assets and liabilities, and may also recount grim details of personal conduct. Decisions of workers’ compensation tribunals may contain significant amounts of personal health information; the same can be said of human rights tribunals, pension and disability tribunals, and so on. In many civil cases where plaintiffs allege damages for anxiety, stress, or depression caused by the harm they suffered, courts may engage in a detailed discussion of the evidence presented. In personal injury law suits, there may be considerable discussion of personal health information. This is just a sample of some of the personal information that may be found in court decisions. In digital form, this information is available to nosy neighbors, malefactors, and data miners alike.

Courts and tribunals publish their decisions in conformity with the open courts principle. Online publication, however, raises significant privacy concerns that must be balanced against the open courts principle. The Canadian Judicial Council has considered this issue, and has issued guidelines for courts as to how to prepare decisions for online publication. The Office of the Privacy Commissioner of Canada has also weighed in on the issue with respect to the practices of federal administrative tribunals. The problem is, of course, that these guidelines are not mandatory, and, as Christopher Berzins has noted, there no consistent approach across the broad range of courts and tribunals in Canada. Further, in some cases, there may be genuine debate about whether certain details are required in order to meet the open courts principle. For example, if we are to understand why a certain award of damages is made in a particular case, we need to understand the nature of the evidence presented, and how the judge assessed that evidence.

So much for the first line of defence. Ideally, courts and tribunals, prior to making decisions available for online publication, should address privacy issues. Many do, some do not. Not all do so to the same extent or in the same way. In some cases, the open courts principle will outweigh privacy considerations – although whether technical or other solutions should be instituted is an excellent question. The fact remains that much personal information ends up being published online through important resources such as CanLII. CanLII itself has introduced a second line of defence – technological measures to ensure that the personal information is not accessible through search engines. What the story about the Romanian website has taught us is that this line of defence is entirely porous. It has also taught us that as more and more public personal information is made available in formats that allow for easy dissemination, greater attention needs to be paid – by courts and by governments at all levels – to the challenges of public personal information.